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been held that the knowledge of an to be imputed occupy a peculiar relaattorney for a purchaser of land, of a tion to the question under consideradefect in the title, is not imputable to tion in this note. Facts acquired from his client until it becomes his duty to another client may have been acquired advise his client concerning it. This within the period of the employment being held to be at the time when, by by the client sought to be charged, or the terms of the contract, the balance before the time of such employment. of the purchase money is to be paid It thus appears that there are two and the deed to be taken, the knowl- elements to be considered in dealing edge cannot be imputed before this with knowledge so acquired. The

Many cases impute to a pur- courts, however, have not been conchaser of land the knowledge of his sistent in dealing with this situation. attorney, as may be seen by an exam- A case involving facts so acquired is ination of the cases set out in the

sometimes decided on the ground that notes in III. a, supra. The scope of

the facts were acquired prior to the the attorney's duties under his em

agency; sometimes on the ground that ployment is the determinative fact in

the facts were acquired from another this connection.

client. The cases which consider the IV. Facts acquired in transacting the

direct question, whether knowledge business of another client.

acquired in transacting the business

of one client is imputable to another, a. In general.

do not answer the question uniformly. Facts acquired by an attorney while It has been held that knowledge obacting for a client other than the one tained in transacting business for one to whom a knowledge thereof is sought client is not imputable to another,34 tion against the most able counsel, be- imputable to a subsequent purchaser cause, of course, they would be more of the land who employed him. likely than others of less eminence A letter written by an attorney of to have notice, as they are engaged in a plaintiff to the plaintiff, explaining a great number of affairs of this kind.” the delay in collecting the claim on

33 Kountze v. Helmuth (1893) 140 which suit was brought, was held not N. Y. 432, 35 N. E. 656, holding that admissible to show notice to a defendthe purchaser could not before this ant to the suit, although the writer of time, by his act, waive a defect of a the letter was at that time the attortitle of which he had no actual knowl- ney of the defendant as well as of the edge, on the theory that knowledge of plaintiff, in Equitable Securities Co. v. the defect was imputed to him from Green (1901) 113 Ga. 1013, 39 S. E. the knowledge of the attorney.

434. 34 McCormick v. Wheeler (1864) 36 Sebald v. Citizens Deposit Bank Ill. 114, 85 Am. Dec. 388, holding that (1907) 31 Ky. L. Rep. 1244, 14 L.R.A. knowledge of an attorney of the set- (N.S.) 376, 105 S. W. 130, holding the ting aside of the satisfaction of a knowledge of the president of a bank, judgment in favor of one client is not who was acting as attorney for its diimputable to another client who held rectors in bankruptcy proceedings at a junior lien upon the property cov- the time he executed a note to the bank ered by the first judgment, and who bearing the name of a solvent surety, levied execution thereon without ac- of such insolvency, will not be imtual notice that the first judgment had puted to the bank. It is stated, hownot been satisfied.

ever, in this case, that the attorney Campbell v. Benjamin (1873) 69 Ill. was not representing the bank in the 244, holding knowledge of attorneys matter, but was representing the diwhile acting for parties to a mortgage rectors; but the court adds that "it is foreclosure and sale, of fraud therein, not presumed in law, therefore, that not imputable to a subsequent mort- such attorney has communicated such gagee of the premises, who employed knowledge to another client or printhe attorneys to examine the title. cipal, for to do so would necessitate

Herrington v. McCollum (1874) 73 his violation of the law and of his duty, Ill. 476, holding knowledge of an attor- which is never presumed." ney for the holder of the legal title of In Denton v. Ontario County Nat. land, of equities in a third person, not Bank (1896) 150 N. Y. 126, 44 N. E.


at least, not where it was obtained be- the same subject-matter.85 This holdfore the relation of attorney and cli- ing is sometimes attributed to the genent existed between the attorney and eral theory that notice, to charge the the client sought to be charged with principal, must have been received notice; and this is true, even though while the attorney was engaged in the the employment is with reference to discharge of his duties, as such, and 781, where the knowledge of an attor- notice to an attorney of the rights of ney of a foreclosure action in which a cestui que trust, acquired when emhe appeared for a party was sought ployed by one person to examine the to be imputed to a junior mortgagee, status of title to land involved in cer. who thereafter employed the same at- tain mortgages, no notice to one who torney to foreclose his mortgage. The subsequently employed the attorney court states that the junior mortgagee with reference to a purchase of the "is not chargeable with knowledge mortgages from the trustee. of a fact which his present attorney Brown v. Wilson (1895) 21 Colo. obtained, or which came to his knowl- 309, 52 Am. St. Rep. 228, 40 Pac. 688. edge, while acting for another." This Notice to an attorney of irregularities decision, however, seems finally to in an action in which a judgment is have been based upon the rule of Con- obtained and property of the judgment stant v. University of Rochester, in- debtor sold, obtained from one client, fra, note 72, to the effect that knowl- is not notice to a subsequent client of edge will not be imputed in such a the attorney, who employs him with case unless it was present to the mind reference to the property. of the attorney at the time of the sub- Downer v. Porter (1905) 116 Ky. sequent transaction.

422, 76 S. W. 135, holding knowledge Steinmeyer v. Steinmeyer (1898) 55

of attorneys of a conveyance of propS. C. 9, 33 S. E. 15; but see Blackwell erty by an insolvent debtor, acquired v. British American Mortg. Co. infra, from the debtor for whom they were note 48.

attorneys, not imputable to an asSee Pacific Mfg. Co. v. Brown (1894) signee to whom the debtor subsequent8 Wash. 347, 36 Pac. 273, supra, note ly assigned his property for the bene19.

fit of creditors, and who employed the And see further IV. b, infra, in same attorneys. which it expressly appears that the at- Hood v. Fahnestock (1839) 8 Watts torney was representing both clients (Pa.) 489, 34 Am. Dec. 489, holding at the same time.

purchasers of land not chargeable 86 Mundine v. Pitts (1848) 14 Ala. with knowledge of the attorney em84, holding that knowledge of an at- ployed by them to draw the deed, of torney who executed a deed, of a con- a trust in said land, acquired in transtingent right of the grantor to rescind, acting business for another. is not imputable to a subsequent client, Taylor v. Evans (1897) 16 Tex. Civ. for whom, a few days later, he exe- App. 409, 41 S. W. 871 (explaining cuted a deed of the same land from Taylor v. Evans (1894) Tex. Civ. the grantee in the first deed.

App. —, 29 S. W. 172), holding attachPepper v. George (1874) 51 Ala. 190, ing creditors not chargeable with holding that knowledge of an attorney knowledge of their attorney of a conwho drew a conveyance, of a vendor's templated assignment by the debtor, lien in favor of the grantor, is not im- acquired prior to his employment by putable to a subsequent client, for the attaching creditors, unless such whom the attorney drew a mortgage matter was again brought to the mind on the property from the vendee in the of the attorney after such employment, first conveyance.

and before the attachments were Scotch Lumber Co. v. Sage (1901) made. 132 Ala. 598, 90 Am. St. Rep. 932, 32 In Williams v. Tatnall (1862) 29 III. So. 607, holding that knowledge of an 553, knowledge of attorneys for a unrecorded deed, acquired while act- judgment creditor, of an unrecorded ing as attorney for a holder in the

mortgage on defendant's lands, was chain of title, is not notice to one who imputed to the creditor. It appeared thereafter employs the attorney to that one of the attorneys had taken the purchase the land for him.

acknowledgment of the mortgage long Chapman v. Hughes (1901) 134 Cal. before, being employed by the credi641, 66 Pac. 982, 60 Pac. 974, holding tor, and that he had knowledge of the

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not when engaged in other business.36 another.40 "An attorney," says the It is, in other cases, attributed to the court in one case, “is not required to general proposition that the notice or disclose to one client the secrets of knowledge must have been acquired another, intrusted to him professionby the attorney within the period of ally by the other client in the transachis agency;

37 it has been stated to tion of his business." 41 That knowlbe necessary “that the knowledge of edge acquired by an attorney in the agent or attorney should be gained conducting business for one client is in the course of the same transaction not imputable to a subsequent client, in which he is employed by his cli- where it would be a breach of profes

The reason is, says one court, sional confidence to make the disclo“that no man can be supposed always sure, is held in some cases that take to carry in his mind the recollection the general view that such knowledge of former occurrences." 39 But in will be imputed ordinarily, where it other cases, in which the fact sought was present to the mind of the attorto be imputed is one which was com- ney.42 In some cases in which the nomunicated by another client, and tice was imputed to the client, it is which comes under the class of a priv- stated that the knowledge was acileged communication, or is of such a quired by the attorney in such a mannature, this holding is based upon the ner that he might communicate it to impropriety of thus communicating his client, or act upon it, without being facts obtained from one client, to guilty of any violation of duty.43 For mortgage in mind when acting for the communicate such facts. Facts were creditor.

as to irregularity in obtaining a judgSee McCormick v. Joseph (1887) 83 ment; see supra. Ala. 401, 3 So. 796, infra, note 67.

While it does not appear that the 86 Mundine v. Pitts (1848) 14 Ala. knowledge sought to be imputed in 84; Pepper v. George (1874) 51 Ala. Hood v. Fahnestock (1839) 8 Watts 190.

(Pa.) 489, 34 Am. Dec. 489, supra, was 37 Pepper v. George and McCormick à confidential communication, it is v. Joseph (Ala.) supra.

stated by the court that knowledge acSee Taylor v. Evans (1897) 16 Tex. quired by an attorney in one transCiv. App. 409, 41 S. W. 877, supra, note action will not be imputed to another 35.

client in another transaction, because 38 Hood v. Fahnestock (Pa.) supra, “it might be contrary to his duty to approved in Martin v. Jackson (1856) reveal the confidential communication 27 Pa. 508, 67 Am. Dec. 489.

of his client.”

j See statement as to Pennsylvania See Akers v. Rowan (1890) 33 S. C. cases, supra, note 14.

451, 10 L.R.A. 705, 12 S. E. 165, infra, See Kirklin v. Atlas Sav. & L. Asso. 97. (1900) Tenn. 60 S. W. 149, in- 41 Downer v. Porter (1903) 116 Ky. fra, note 99.

422, 76 S. W. 135. See Sebald v. Citi39 Hood v. Fahnestock (Pa.) supra. zens Deposit Bank. (1907) 31 Ky. L.

The court in Mutual Bldg. & L. Rep. 1244, 14 L.R.A.(N.S.) 376, 105 Asso.'s Case (1896) 19 Pa. Co. Ct. 504, S. W. 130, supra, note, 34. referred to the statement in Hood v.

42 Melms

v. Pabst Brewing Co. Fahnestock, set out in the text, and (1896) 93 Wis. 153, 57 Am. St. Rep. states that, the reason for the rule 899, 66 N. W. 518, holding that the having ceased, the rule itself ceases, knowledge of an attorney for execuand continues : “The reason ceases tors of the invalidity of the sale to one in the present case, as the point to be of their number, will not be imputed remembered was a present one, stick- to a purchaser from the executor, ing out of the very transaction in where the same attorney was emquestion." See supra, for facts. ployed by the executor and his vendee

See cases infra, relating to imputing in completing the transaction. previously acquired knowledge.

Littauer v. Houck (1892) 92 Mich. 40 In Brown v. Wilson (1895) 21 163, 31 Am. St. Rep. 572, 52 N. W. 464, Colo. 309, 52 Am. St. Rep. 228, 40 Pac. imputing to an execution creditor 688, it is stated that it “would have knowledge of his attorney of a mortbeen of doubtful professional pro- gage on the goods on which the execupriety" on the part of an attorney to tion was levied, acquired in a conver




further cases holding that knowledge does not extend to knowledge of a acquired by an attorney in acting for confidential and privileged nature, acone client will not be imputed to quired through previous professional another, see IV. b, infra.

engagements, which the attorney was On the contrary, it has been held not at liberty to communicate to the that knowledge acquired by an attor- client.46 It has been held that inney when acting for one client is im- formation imparted to an attorney in putable to a subsequent client, where an attempt to evade the Assignment the former employment was of recent Laws is not protected as confidendate.44 And in many cases the fact

tial.47 that the knowledge sought to be im

b. Attorney acting for both clients at the puted was acquired in the service of

same time. another client is not considered, at least not beyond the fact that it was

1. In general. acquired in another transaction.

Where the attorney is acting for Not all knowledge obtained by an several clients at the same time, and attorney when engaged in the work of in the same business, it has been held a client comes by way of a confiden- that notice to or knowledge of the attial communication, and as to such torney, acquired in the transaction of knowledge there has been held to be the business of one of the clients, is no argument against its imputation on knowledge to all the clients. Thus, a the ground of confidence. Thus, there nonresident mortgage company has has been held to be nothing of a confi- been held chargeable with the knowl. dential nature in the pendency of an edge of an attorney who represented action, which would prevent knowl- it and the borrower in making a edge thereof by an attorney for a party

This rule is invoked in case therein being imputed to another cli- of an attorney who represents several ent of the attorney, under the rule creditors of a debtor; his knowledge is that the doctrine of imputed notice imputed to all his clients.49 Knowlsation with the mortgagee a few days E. 395, holding a nonresident mortprevious to the receipt of the claim gage company chargeable with the on which the suit was afterwards knowledge of an attorney who negobrought, judgment obtained, and exe- tiated the loan, preparing the abstract, cution levied.

passing upon the title, etc., and who 44 Melms

Pabst Brewing Co. is held to have acted as agent both (1896) 93 Wis. 153, 57 Am. St. Rep. for borrower and lender, that a con899, 66 N. W. 518 (dictum). See su- veyance in the chain of title, which pra, for facts.

purported to be an absolute one, was In Dunlap v. Wilson (1863) 32 Ill. in fact a mortgage. 517, there is obiter to the effect that Compare with Kirklin v. Atlas Sav. if an attorney had been recently em- & L. Asso. Tenn. 60 S. W. 149, ployed in drawing a mortgage on cer- infra, note 99. tain lands he must be presumed to And see PYEATT V. ESTUS (reported have acted with reference to his knowl- herewith) ante, 1570. edge thereof, and the knowledge thus 49 City Nat. Bank v. Jeffries (1882) possessed by him is imputable to a 73 Ala. 185, holding the knowledge of subsequent purchaser of the land, who an attorney for three creditors of a employed him. But see McCormick v. failing debtor, of a compromise which Wheeler (1861) 36 Ill, 114, 85 Am. Dec. he attempted, favoring two of the 388, supra.

creditors, the third creditor to share 45 See infra, V.

with other creditors on less favor46 Trentor v. Pothen (1891) 46 Minn. able terms, is notice to the third credi298, 24 Am. St. Rep. 225, 49 N. W. 129. tor so as to prevent the attempted com

See Holmes v. Long (1918) Tex. promise from being fraudulent as to Civ. App. 207 S. W. 201, supra, note him. 10.

Haven V. Snow (1833) 14 Pick. 47 Taylor v. Evans (1894) Tex. (Mass.) 28. Knowledge of an attorCiv. App. 29 S. W. 172.

ney for several attaching creditors, of 48 Blackwell British American an attachment levied in favor of one Mortg. Co. (1902) 65 S. C. 105, 43 S. of his clients, is imputable to his other




edge of an attorney when acting for the insolvency, and his intent to preone creditor, of fraud in the discharge fer creditors, was imputed to a credof the debtor in insolvency proceed- itor who employed such attorneys to ings, is imputable to another creditor prosecute his claim, it has been held whom the attorney represented in an that so long as the knowledge was acaction against the debtor.50 The rule quired while the employment of the is also invoked where the attorney attorneys by the creditor was in force, represents the debtor and some of the it is imputable, no matter how such creditors. 51 Knowledge of insolvency knowledge was acquired. The court and of an intent to give an unlawful states that to say that the knowledge preference, possessed by an attorney which came to the attorneys “came to for an insolvent debtor, is imputable them because they were attorneys for to a creditor who employed such attor- the debtors on a prior employment

This has been held true, even does not help the case. They were if the creditors did not know that the none the less acting for the bank, and attorneys employed represented the the facility they had, through their debtor.53

employment for the debtors, to do just Where an attorney who has acquired what was done in this case to secure knowledge of certain facts while act- the preference, is no mitigation; othing for one client, afterwards, and erwise, all that a creditor seeking a while still representing this client, is preference need do is to employ the employed by another in a matter aris- debtor's prior attorney." 66 ing out of the transaction in which Some cases, taking the view that the knowledge was obtained, notice of knowledge will be imputed, emphasize this fact has been imputed to the sub- the manner in which the knowledge sequent client, 54 and reversely, when was obtained. For example, the court an attorney, while representing one in imputing knowledge of fraud in the client, has, while in the employment of discharge of an insolvent debtor, to another and subsequent client, ob- a creditor represented by an attorney tained knowledge relating to the sub- who was present in court at the time ject-matter of his first employment, of such discharge, as attorney for such knowledge is imputable to the another creditor, states: "This knowlfirst client. 56

edge was not obtained by confidential In a case in which the knowledge of communications or other means which attorneys for an insolvent debtor, of would justify them in withholding it clients in whose favor attachments Knowledge of an attorney for a failwere subsequently levied.

ing debtor and a number of creditors, Burns v. Wilson (1897) 28 Can. S. in whose favor mortgages were given C. 207, holding the knowledge of an or judgments confessed, of a prior unattorney who represented creditors of recorded mortgage given by the debtan insolvent debtor and a lender upon or, is imputable to the creditors for the security of a chattel mortgage upon whom the attorney acted. Haas v. the insolvent's goods, imputable to the Sternbach (1895) 156 Ill. 44, 41 N. E. lender, where the knowledge was ac- 51. This is held true, although the quired in making the loan. The credi

attorney was employed by the debtor; tors in this case were paid with the

see further as to this case, infra. money secured by the loan.

62 Wight v. Muxlow (1875) 8 Ben. 50 Blake v. Clary (1891) 83 Me. 154,

52, Fed. Cas. No. 17,629; Brown v. Jef21 Atl. 841. 61 Shideler v. Fisher (1899) 13 Colo.

ferson County Nat. Bank (1881) 19

Blatchf. 315, 9 Fed. 258. App. 106, 57 Pac. 864, holding knowledge of an attorney for an insolvent

53 Brown V. Jefferson County Nat. debtor and several creditors, of fraud

Bank (Fed.) supra. in a mortgage taken for the benefit of

54 Donald v. Beals (1881) 57 Cal. the attorney and the creditors whom 399; see facts, infra, note 71. he represented, in that it secured the 55 See Walker v. Schreiber (1877) 47 attorney for future services to be ren- Iowa, 529, supra, note 16. dered the insolvent, notice to the 56 Brown v. Jefferson County Nat. creditors.

Bank (Fed.) supra.


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